U.S. v. Michael

• Decision Date: 28 July 1980
• Docket Number: No. 79-2679,79-2679
• Citation: 622 F.2d 744
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Barry Dean MICHAEL, a/k/a Mike Thompson, a/k/a Mike Johnson, Defendant- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 744

622 F.2d 744

UNITED STATES of America, Plaintiff-Appellant, v. Barry Dean MICHAEL, a/k/a Mike Thompson, a/k/a Mike Johnson Defendant- Appellee.

No. 79-2679.

United States Court of Appeals Fifth Circuit.

July 28, 1980.

William S. Sutton, Asst. U.S. Atty., Atlanta, Ga., Ann T. Wallace, Atty., App. Sec., Criminal Div., Washington, D.C., for plaintiff-appellant.

Al M. Horn, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, HATCHETT and TATE, Circuit Judges.

TATE, Circuit Judge:

This panel faces an issue on which the en banc court divided equally: Whether, absent exigent circumstances, governmental agents may install an electronic tracking device (a "beeper") upon a private automobile without first securing judicial authorization. A panel of this court unanimously held in the negative. U. S. v. Holmes, 521 F.2d 859 (5th Cir. 1976). An application for en banc hearing was granted, 525 F.2d 1364 (5th Cir. 1976). On such rehearing, due only to the even division of the sixteen judges participating, the district court's judgment requiring a warrant was affirmed. 537 F.2d 227 (5th Cir. 1976). ¹

In the case before us, the defendant Michael was indicted on two counts (along with three co-defendants) for conspiracy to unlawfully manufacture methylenedioxyamphetamine (MDA), a Schedule II Controlled Substance, and for the unlawful distribution of MDA, in violation of 21 U.S.C., Sections 841(a)(1) and 846. The defendant Michael moved to suppress certain evidence as unconstitutionally seized. With regard to the issue before us, the evidence was seized from a warehouse (the search of which was authorized by a warrant), the location of which had been ascertained as a result of the warrantless installation of a beeper on a van rented and operated by Michael. The warehouse was located four days after installation of the beeper through following Michael's van with its aid. Relying on Holmes, the district court suppressed the evidence as the fruit of the warrantless installation of the beeper; it held that the Fourth Amendment was violated by the failure of the governmental agents to obtain judicial authorization (a search warrant) prior to installation of the beeper and to the subsequent monitoring of the vehicle through its use. The government appeals. 18 U.S.C., Section 3731. ² For reasons to be stated, we affirm.

I.

The central issue of this appeal is thus whether, absent exigent circumstances, a warrant issued with judicial approval is required before governmental agents may attach to a privately owned vehicle, without consent of one entitled to give it, a "beeper" or electronic tracking device. The panel agrees that, should judicial authorization be required, then the trial court's conclusion is not clearly erroneous that no exigent circumstances justified the immediate installation of the beeper without prior judicial approval. ³ The panel is of the further opinion that only reasonable suspicion ⁴ existed at the time the beeper was installed to believe that the defendant was connected with the criminal activity of another suspect (for whom probable cause did exist); but that, whether the test is probable cause or instead reasonable suspicion, a warrant issued under judicial supervision is required (absent exigent circumstances) before a beeper may be installed without consent on private property for purposes of electronic surveillance albeit that such private property is a motor vehicle parked at the time in a place open to the public, and that the beeper is attached only to its exterior.

Preliminarily, we note the factual circumstances attendant upon the use of a beeper for the purpose of maintaining electronic surveillance of the travel and location of the vehicle to which attached. The beeper is a battery-operated device that emits signals that can be picked up on a radio frequency. The signals show the approximate location and movement of the vehicle to which it is affixed. The beeper is quickly attached through its magnets to the underside exterior of the vehicle. Although a governmental witness testified that the battery usually lasts only ten days, the evidence in this case shows that the beeper installed on August 10th was still emitting signals at the end of August (when it was removed from the rental vehicle after its return to the automobile agency).

II.

In the instant case, the evidence was suppressed by the district court as the fruit of the warrantless installation of a beeper. The narrow issue concerns the initial unauthorized installation of the beeper upon a vehicle, when no exigent circumstances justified doing so if prior judicial authorization is required.

In Holmes, the panel decision held that the warrantless attachment of a beeper to private property, under such circumstances, is a per se intrusion on Fourth Amendment rights. Distinguishing the attachment from such minimal and momentary intrusions as checking vehicle identification numbers or taking paint scrapings, the panel decision held that the beeper, remaining constantly in place, performs a search of much more substantial and therefore unreasonable duration and scope. ⁵ The panel decision essentially held that the installation of the beeper without consent upon private property is a "search" subject to Fourth Amendment warrant requirements, in the sense that it is an unreasonable governmental intrusion upon the individual's constitutionally guaranteed right of personal security, personal liberty, and private property. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

The dissenting opinion to the en banc Holmes affirmance, 537 F.2d at 228, believed that no warrant is required. The dissent did not view the installation of the beeper as a "search" or invasion of privacy within the protection of the Fourth Amendment. It essentially viewed the attachment as a minimal intrusion upon the individual's privacy and property equivalent to the permissible warrantless inspection of a vehicle identification number on the frame of an automobile, United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (en banc), or to the taking of paint scrapings from the exterior of an automobile parked in a police impoundment lot, Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

III.

In decisions subsequent to Holmes, the Fifth Circuit held that the express consent of the owner to the installation of electronic tracking devices in aircraft was within the third-party consent exception to the warrant requirement. United States v. Cheshire, 569 F.2d 887 (5th Cir. 1978) (beeper placed on plane justified by owner's consent); United States v. Abel, 548 F.2d 591 (5th Cir. 1977), ⁶ cert. denied, 431 U.S. 956, 97 S.Ct. 2678, 53 L.Ed.2d 273 (1977) (beeper placed on plane justified by owner's consent). Accord United States v. Miroyan, 577 F.2d 489 (9th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 258, 58 L.Ed.2d 243 (1978). Likewise in United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979), this court held that it was not an invalid warrantless search when a paid informant installed an electronic beeper on a vessel used by defendants in their attempt to import marijuana into the United States: "Here, Budal (the informant) was not the vessel owner, but he had a right to go aboard, and his placement of the devices on the vessel rather than on his person does not render its introduction invalid." 589 F.2d at 1264.

The approaches of the other circuits, when they have reached the issue, vary whether the installation of a beeper to ascertain continuously the location of an object or of a vehicle (or airplane) falls within Fourth Amendment prohibitions, and also whether a warrant is required.

The First Circuit has held that the installation of electronic devices to monitor the movement of a vehicle violates reasonable, although lessened, expectations of privacy of the operator of the vehicle, but that no warrant was required and no Fourth Amendment violation occurred where government agents have probable cause to believe that the operator of the vehicle is involved in the commission of a crime. United States v. Moore, 562 F.2d 106, 112-113 (1st Cir. 1977). ⁷ Of some relevance to a concern expressed by the present panel, the court further held that the warrantless insertion in a container of a legally possessed non-contraband substance (although with the consent of the chemical company prior to delivery to the suspect) may have violated the accused's Fourth Amendment rights, insofar as it continuously emitted information as to location of the chemicals while inside a residence protected from warrantless search. Due to record deficiency, the court therefore remanded the case for the district court to determine whether the location of the evidence "was come at not by exploitation of the illegality (the warrantless continued presence of the beeper in the home) but instead by distinct means which purge the evidence of the primary taint." Id. at 114.

In one opinion, the Ninth Circuit has held, although arguably by way of dicta, ⁸ that the attachment of an electronic location device to an automobile does not infringe upon any reasonable expectation of privacy and therefore does not constitute a search. United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976). Subsequent decisions of that circuit, however, indicate that, a warrantless installation of a beeper without consent might raise Fourth Amendment issues, but that the mere monitoring of movement after installation of a beeper (i. e., with consent of one entitled to give or pursuant to judicial authorization) does not infringe on any reasonable expectation of privacy and therefore does not constitute a search. United States v. Miroyan, 577 F.2d 489, 492...